Same-sex marriage symposium: Same-sex marriage in the courts of law and reason

Posted Tue, September 18th, 2012 11:54 am by Nelson Lund

The following contribution to our same-sex marriage symposium comes from Nelson Lund, the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law. He has assisted in the representation of Proposition 8 Official Proponents and ProtectMarriage.com in the case currently styled Hollingsworth v. Perry.

Recent attacks on the constitutionality of our nation’s traditional definition of marriage have no basis in reason or in the law. These attacks are based on a toxic blend of demagoguery and moralistic zealotry designed to trigger judicial adventurism. And the adventures have begun. The Supreme Court should step in now to reaffirm what has always been true: nothing in the U.S. Constitution requires or permits the federal courts to invalidate legislative decisions defining civil marriage as the union of one man and one woman.

This is not an issue of first impression. In Baker v. Nelson (1972), the Supreme Court decided that the Fourteenth Amendment did not create a right to same-sex marriage, and that such a claim did not even raise a substantial federal question. Nothing the Court said before or after that decision casts the slightest doubt on its holding. In Loving v. Virginia (1967), for example, a ban on interracial marriage was struck down without so much as a hint that this required governments to recognize same-sex marriages, or polygamous marriages, or incestuous marriages, or marriages to children, or anything other than the traditional form of marriage. Arguments to the contrary rest on a false and offensive analogy that demeans the struggle for racial equality.

Similarly, none of the recent decisions involving the rights of homosexuals has said or implied that there is any constitutional right to same-sex marriage.Romer v. Evans (1996), for example, held that a state constitution may not forbid the legislature to give homosexuals any particular legal protections. Such blanket discrimination denies the equal protection of the laws in the most literal sense, and the Court emphasized the unique and unprecedented nature of such a sweeping denial of legal protection. In Lawrence v. Texas (2003), the Court held that anti-sodomy laws violate substantive due process because of the severe deprivation of personal liberty they impose. The traditional definition of marriage does not interfere with anyone’s personal liberty any more than it resembles the unprecedented denial of equal protection at issue in Romer. Not surprisingly, Lawrence specifically warned that it should not be read to imply a right to same-sex marriage.

In a desperate effort to prompt the courts into rejecting established precedent (or perhaps to cow them into it), opponents of existing law argue that defending the traditional legal definition of marriage is so utterly irrational – so bereft of any conceivable legitimate justification – that it can only be explained as an assault born of animosity against a politically unpopular group. The list of such bigots, or panderers to bigots, is very long indeed. A few examples include Bill Clinton (who signed the Defense of Marriage Act), Hillary Clinton, Joe Biden, and Sandra Day O’Connor. It includes a large percentage of black voters and, until very recently, Barack Obama. Proponents of same-sex marriage apparently hope that the Justices will change the law in response to these charges of bigotry and animosity. If a majority of the Justices are governed by the power of reason, a campaign of moral intimidation will not succeed in that arena.

Children are the result of unions between men and women, and every civilization has recognized that responsible procreation is critical to its survival. The institution of marriage has been established in virtually every known human society, including our own, and officially recognized marriages have always been exclusively between men and women. This is not an accident or an expression of unreasoned prejudice. It is a perfectly reasonable implication arising from the civil purpose of marriage.

Next to the desire for self-preservation, sexual passion is perhaps the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally, and it does so only after a nine-month lapse. The result can be uncertainty about paternity or indifference to it by the father. If left unchecked, this disconnect between men and their offspring would deprive many men of adequate incentives to invest in rearing their children. Such widespread irresponsibility would have made the development of civilization impossible.

The fundamental purpose of marriage has been to encourage and assist biological parents, especially fathers, to take responsibility for their children, and sometimes to require them to do so. Because this institution is a response to the natural effects of heterosexual intercourse, the very meaning and definition of marriage has always been inseparable from the problem it is meant to address. Even if you think the problem no longer exists, it does not follow that those who disagree with you are bigots or that they could have no legitimate reasons for their beliefs.

It is true, of course, that different cultures have established different rules to govern marriage. Most conspicuously, perhaps, some have permitted polygamy and others have not. Various other features have changed over time, such as the respective rights and responsibilities given to husbands and wives, and the ease or difficulty of obtaining a divorce. But the principal purpose of the law has always been the same.

Different cultures have also adopted a variety of formal and informal rules outside of marriage to cope with the effects of the powerful human sexual urge. Some, for example, have sought to discourage homosexual relationships, while others have tolerated them. Some have made great efforts to prevent extramarital sex, while others have been more permissive. Amid all this variety, however, civil marriage has always been understood to involve only the recognized unions of men and women because these are the only sexual unions that serve the fundamental purpose of creating offspring and fixing the responsibility of biological fathers to care for their children. Homosexual relationships – and lots of other human relationships involving love or sex as well – have nothing to do with the traditional purpose of marriage. That is why the marriage laws have not extended to them.

Many people today believe that marriage as traditionally understood has become obsolete because of technological advances in birth control and artificial reproduction, or because of changing social mores. They believe that these developments invite us to redefine marriage and replace it with a new institution having the same name but a different purpose. A few states, like California, have stopped just short of what is now demanded, recognizing homosexual unions and giving them the same civil rights and benefits that come with marriage. A few others, along with some foreign countries, have gone all the way and replaced traditional marriage with something fundamentally new. Perhaps this is the wave of the future, and perhaps it will be an improvement over what we have inherited from a civilization that goes back thousands of years. If so, the jurisdictions that have not leapt to join in such experiments will be free to follow the wisdom of the early leaders.

But nobody, and I mean absolutely nobody, can guarantee that these innovations will be beneficial. Some experiments fail, and one advantage of democracy is that it permits failed experiments to be abandoned. One advantage of our federalism, moreover, is that it permits some jurisdictions to experiment with social policy while others wait to see how things turn out. If the Supreme Court is arrogant or cowardly enough to constitutionalize same-sex marriage, however, that will be that.

What if today’s confident predictions about the bright future promised by a redefinition of marriage prove unfounded? We and our children will be stuck with the enormous and quite possibly infeasible task of overcoming the legal inertia created by the Court’s decision, and then re-inventing an institution whose foundations the Court will have seriously undermined.

It is not so long ago that the Supreme Court was presented with a similar congeries of moral appeals prompted in part by technological and social developments. Just as modern science has disrupted the natural connection between heterosexual sex and reproduction, so has modern science disrupted the natural connection between catastrophic bodily failures and death. This gave rise to the “right to die” movement, which eventually brought its passionate moral claims to the Supreme Court. There was nothing in the Constitution or in the Court’s precedents to support this novel right, and the Court declined to pretend that there was.

In Washington v. Glucksberg (1997), the Court concluded by saying: “Americans are engaged in an earnest and profound debate about the morality, legality, and, practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.” In the court of reason, the same answer must be given to those who demand the judicial invention of a constitutional right to same-sex marriage. Glucksberg was correctly decided, and there is nothing to stop the Supreme Court from interpreting the Constitution correctly once again.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.